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Home My WebLink About06-4365r ? McNEES WALLACE & NURICK LLC Susan V. Metcalfe, Esquire Attorney I.D. No. PA 85703 Megan N. Dreisbach, Esquire I.D. No. 201418 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: (717) 232-8000 Fax: (717) 237-5300 smetcalfe( mwn.com Attorneys for Plaintiff GROFF TRACTOR AND EQUIPMENT, : IN THE COURT OF COMMON PLEAS INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. O(p - ?4)6L 0l u L L'7?A,j V. WEAVER MASTER BUILDERS, INC., Defendant CIVIL ACTION - LAW PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a writ of summons in the above-captioned action, and forward one copy to the undersigned Attorney and one copy to the Sheriff, for service. McNEES WALLACE & NURICK LLC ByLSusaln-A . Metcalf ,Esquire V I.D. No. 85703 Megan N. Dreisbach, Esquire I.D. No. 201418 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff Dated: July 31, 2006 ? ? ({?-?1?' 1 r C' ils S `? 4 -n ._.? T , c r ? GROFF TRACTOR AND EQUIPMENT, : IN THE COURT OF COMMON PLEAS INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. CSL - J43L. S CIVIL ACTION - LAW WEAVER MASTER BUILDERS, INC., Defendant WRIT OF SUMMONS TO: WEAVER MASTER BUILDERS, INC., Defendant: n vt'-' ? YOU ARE HEREBY NOTIFIED that Groff Tractor and Equipment, Inc. has commenced an action against you Date: / (SLR - ro7 +?a.n?(EwoaL, La??, Est PA- I t ol/(o aA4?L Cu Long, a By: (Deputy) Seal of the Court McNEES WALLACE & NURICK LLC Susan V. Metcalfe, Esquire I.D. No. PA 85703 Megan N. Dreisbach, Esquire I.D. No. PA 201418 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: (717) 232-8000 Fax: (717) 237-5300 smetcalfena mwn.com Attorneys for Plaintiff GROFF TRACTOR & EQUIPMENT, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06 - 4365 Civil Action - Law WEAVER MASTER BUILDERS, INC., and COMMERCIAL BUILDING CORPORATION, Defendants NOTICE YOU HAVE BEEN SUED IN COURT. if you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 AVISO LISTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan m6s adelante an las siguientes p6ginas, debe tomar accibn dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando an la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin m6s aviso adicional. Listed puede perder dinero o propiedad u otros derechos importantes para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. St LISTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 or (800) 990-9108 McNEE WALLACE & NURICK LLC By 'Susan V. Metcalf , Esquire I.D. No. 85703 Megan N. Dreisbach, Esquire I.D. No. 201418 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Dated: August _a, 2006 Attorneys for Plaintiff 2 McNEES WALLACE & NURICK LLC Susan V. Metcalfe, Esquire I.D. No. PA 85703 Megan N. Dreisbach, Esquire I.D. No. PA 201418 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: (717) 232-8000 Fax: (717) 237-5300 smetcalfeO.mwn.com Attorneys for Plaintiff GROFF TRACTOR & EQUIPMENT, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06 - 4365 Civil Action - Law WEAVER MASTER BUILDERS, INC and COMMERCIAL BUILDING CORPORATION, Defendants COMPLAINT Plaintiff, Groff Tractor & Equipment, Inc., through its counsel McNees Wallace & Nurick LLC, files the following Complaint: Parties 1. Plaintiff, Groff Tractor & Equipment, Inc., ("Groff') is a Pennsylvania corporation with its principal place of business at 6779 Carlisle Pike, Mechanicsburg, Pennsylvania 17055. Groff is a construction equipment dealer. 2. Defendant, Weaver Master Builders, Inc. ("Weaver"), is a Pennsylvania Corporation with its principal place of business located at 107 Ramblewood Lane, Mars, Pennsylvania 16046. 3. Defendant, Commercial Building Corporation ("CBC") is a Pennsylvania Corporation with its principal place of business located at 107 Ramblewood Lane, Mars, Pennsylvania 16046. 4. William J. Weaver is the President of both Weaver and CBC. Venue 5. Venue is proper in Cumberland County because, interalia, the agreement that gives rise to this dispute ('Rental Agreement') contains a jurisdiction and venue clause that provides: Any action based on any dispute arising out of or related to this Agreement shall be brought in the Court of Common Pleas of Cumberland County, Pennsylvania, or the United States District Court for the Middle District of Pennsylvania. Customer irrevocably consents to venue and exclusive jurisdiction in such courts. (Rental Agreement, ¶ 19). A true and correct copy of the Rental Agreement is attached hereto as Exhibit A. Factual Background 6. On October 11, 2005, Weaver entered into the Rental Agreement with Groff to rent a Takeuchi TB175 excavator ("Excavator") for use at Weaver's construction jobsite at Cobblestone Village in Mars, Pennsylvania. 7. On November 12, 2005, Weaver notified Groff that the Excavator had been stolen from the Cobblestone Village jobsite sometime during the previous night. 2 Under the Rental Agreement that Weaver executed, Weaver agreed to pay Groff the full replacement value of the Excavator if it were stolen, plus the full regular rental rate until the equipment was replaced. The Rental Agreement provides: Loss of Equipment. Customer agrees to reimburse Groff for all losses and damages to Equipment leased occasioned by fire, theft, flood ...or any and all other causes ...that may occur during the lease term. Customer will pay Groff the then full replacement list value together with the full regular rental rate until such Equipment is replaced. (Rental Agreement, ¶ 11). 9. Weaver paid Groff for the first month's rental payment. 10. Weaver did not make any rental payments to Groff for the period after Weaver reported the Excavator stolen. 11. Groff has demanded that Weaver reimburse Groff for the value of the Excavator and the rental payments due and owing, but Weaver has refused to do so. 12. The Rental Agreement also provided that Weaver was obligated to insure the Excavator for its full replacement value, name Groff as an additional insured and loss payee, and provide Groff with proof of insurance. Specifically, the Rental Agreement provides: Customer, at its expense, shall keep the equipment insured for the term of this lease and any renewals or extensions thereof, for the full replacement value thereof, against all risks of direct physical loss or damage. Customer shall supply to Groff proof of such insurance by Certificate of Insurance clearly setting forth the coverage for the Equipment and naming Groff as loss payee and additional insured; such insurance and evidence thereof to be in amounts and form satisfactory to Groff. 3 (Rental Agreement, 113). 13. On or about November 16, 2005, Weaver reported the theft of the Excavator to its insurance company, Nationwide Insurance Company ("Nationwide"). 14. On January 10, 2006, without notifying Groff, Weaver requested that Nationwide close Weaver's claim for the theft of the Excavator. 15. On or about June 13, 2006, Groff, as an additional insured under Weaver's policy, submitted its own claim with Nationwide for the loss. 16. By letter dated July 28, 2006, Nationwide denied Groffs claim. A true and correct copy of Nationwide's denial letter is attached hereto as Exhibit B. 17. Nationwide informed Groff that Weaver added Groff as an additional insured only with respect to property damage to the Excavator caused by Weaver's maintenance, operation, or use thereof ("liability coverage"), and not for losses caused by individuals or entities other than Weaver, such as theft ("first-party coverage"). 18. Nationwide also informed Groff that Weaver's policy would not cover the Excavator for its full replacement value because Weaver failed to notify Nationwide that it had acquired the Excavator, and failed to specifically schedule the Excavator on its policy. Instead, the loss would be covered at the Excavator's cash value, subject to a limit of $41,465.84. 19. Nationwide further informed Groff that Weaver's policy provides secondary coverage only, and that the loss would not be covered at all if, at the time of the theft, the Excavator was covered by another policy. 4 20. In its denial letter, Nationwide confirmed that it would approve the claim, and pay Groff full market value subject to the policy's coverage limit, if Weaver itself re- presented the claim to Nationwide. (Exhibit B). 21. Nationwide has advised and urged Weaver to resubmit the claim. 22. Despite Nationwide's advice and urging, and despite Groffs demands, Weaver has refused to resubmit the claim to Nationwide. Count I Groff Tractor & Equipment, Inc. v. Weaver Master Builders Breach of Rental Agreement 23. Paragraphs 1-22, above, are incorporated herein by reference. 24. At all times relevant hereto, Groff complied with the terms of the Rental Agreement. 25. Weaver breached the Rental Agreement by: a. Failing to reimburse Groff for the full replacement value of the Excavator together with the full rental rate until it is replaced; b. Failing to insure the Excavator for its full replacement value against all risks of direct physical loss or damage; C. Failing to take steps necessary to add Groff as an additional insured and loss payee for all risks to the Excavator; and, d. Withdrawing its claim against its Nationwide insurance policy, and failing and/or refusing to resubmit it. 26. The replacement list value of the Excavator is $60,500.00. 27. Under the Rental Agreement, the rental rate for the Excavator is $2,700.00 per month. 28. The Rental Agreement provides that late payments are subject to service charges of 1.5% per month. (Rental Agreement, 15). 5 29. As of the date of filing this Complaint, Weaver owes more than $27,000.00 in rental payments, together with service charges thereon of 1.5% per month. 30. The Rental Contract also entitles Groff to collect attorneys' fees, as follows: In the event any legal proceeding is commenced by Groff to enforce any part of this Agreement, Groff shall be entitled to collect from Customer all costs and expenses incurred in such proceeding including without limitation Grof's attorneys' fees and costs. (Id. ¶ 14). 31. As a result of Weaver's breach of the Rental Agreement, Groff has incurred damages in excess of $87,500.00 plus service charges and attorneys' fees. 32. Groff will continue to incur losses in the amount of $2,700.00 per month plus services charges until Weaver reimburses Groff for the Excavator. 33. As the legal and equitable owner of the Excavator, Groff is entitled to any proceeds from a claim against Weaver's Nationwide insurance policy. 34. Weaver has breached the Rental Agreement by failing to add Groff as an additional insured and loss payee for all risks to the Excavator and by failing to pursue a claim against the Nationwide policy. 35. Groff is entitled to an assignment of Weaver's rights under its Nationwide policy with respect to the theft of the Excavator. WHEREFORE, Groff respectfully requests judgment in its favor and against Weaver, in the amount of $87,500.00, together with additional rental payments as they continue to accrue after the filing of this Complaint, plus service charges, interest, costs, expenses, attorneys' fees and other such relief as this Court deems appropriate. Groff 6 further requests that the Court order Weaver to assign to Groff its claim under the Nationwide insurance policy. Count II (In the Alternative) Groff Tractor & Equipment, Inc. v. Commercial Building Corporation Breach of Sales Agreement 36. Paragraphs 1-35, above, are incorporated herein by reference. 37. In early November, 2005, the President of Weaver, William J. Weaver, decided to purchase the Excavator in the name of his other company, CBC, rather than continuing to rent it. 38. On or about November 4, 2005, CBC entered into negotiations to buy the Excavator ("Sales Agreement'), and executed a sales order ("Sales Order"). A true and correct copy of the Sales Order is attached hereto as Exhibit C. 39. In conjunction with executing the Sales Order, Mr. Weaver and CBC applied for financing through a third party, Town & Country. 40. The sale of the Excavator was contingent upon Mr. Weaver and CBC receiving credit approval, and upon Groffs acceptance of the Sales Order. 41. The Rental Agreement remained in full force and effect while the sale was pending. 42. At the time of the theft, the credit application was still under review, pending the receipt of additional information from Mr. Weaver. 43. Before the credit application could be approved, Weaver and/or CBC reported the Excavator stolen. 7 44. When the Excavator was stolen on or about November 11, 2005, the Sales Agreement had not been completed or accepted by Groff, and the Rental Agreement was still in effect. 45. However, if it is determined that the Sales Agreement was completed, and the Rental Agreement was therefore not in effect at the time of the theft, then CBC is liable to Groff for breach of the Sales Agreement. 46. Pursuant to the Sales Order, CBC agreed to pay Groff a purchase price of $60,500.00, together with sales tax thereon of $3,630.00, for a total of $64,130.00. 47. CBC did not make any payments toward the purchase price under the Sales Order. 48. The Sales Order provides: If buyer shall default in the performance of any of the terms, covenants and conditions of this Agreement, seller may declare the full amount due and payable without notice or demand and may repossess the equipment. Buyer agrees to pay attorney's fees in the amount of twenty (20%) percent of the amount due and payable, together with any other expenses incurred. (Sales Order, ¶ 5). 49. The Sales Order further provides that CBC is obligated to insure the equipment against all risks, in the name of Groff: The buyer shall at his own expense, but in the name of and for the benefit of the seller, insure said equipment against loss that may occur or be caused by fire, flood, explosion, theft or otherwise, and liability of any and every kind until the selling price is paid in full by buyer. (Id., 17). 50. The Sales Order also provides for an 18% annual service charge on all balances past due. (Id., Additional Terms and Conditions 13). 51. If it is determined that the Sales Agreement, and not the Rental Agreement, was in effect at the time of the theft, then CBC breached the Sales Agreement by: a. Failing to pay Groff the full purchase price of $64,130.00; and, b. Failing to insure the Excavator for its full replacement value against all risks of direct physical loss or damage, in the name of and for the benefit of Groff. 52. As a result of CBC's breach of the Sales Agreement, Groff has incurred damages in excess of $64,130.00 plus service charges thereon and attorneys' fees. 53. As the legal and equitable owner of the Excavator, Groff is entitled to any proceeds from a claim against any applicable insurance policy held by CBC. 54. CBC has breached the Sales Agreement by failing to insure the Excavator for all risks in the name of and for the benefit of Groff. 55. Groff is entitled to an assignment of CBC's rights under any applicable insurance policy with respect to the theft of the Excavator. WHEREFORE, in the alternative to Count I, above, Groff respectfully requests judgment in its favor and against CBC, in the amount of $64,130.00, together with service charges, interest, costs, expenses, attorneys' fees and other such relief as this Court deems appropriate. Groff further requests that the Court order CBC to assign to Groff its claim under any applicable insurance policy. 9 Count III (In the Alternative) Groff Tractor & Equipment, Inc. v. Weaver Master Builders and Commercial Building Corporation Uniust Enrichment/Quantum Meruit 56. Paragraphs 1-55, above, are incorporated herein by reference. 57. In the alternative to Counts I and II, above, Groff contends that Weaver Master Builders and/or Commercial Building Corporation have been unjustly enriched by the equipment provided to them by Groff. 58. In October 2005, Groff delivered the Excavator to Weaver for use at its Cobblestone Village jobsite. 59. At the time the Excavator was stolen, it was solely within the possession and control of Weaver and/or CBC. 60. It would be unfair and unjust to permit Weaver and/or CBC to avoid paying for the Excavator it received from Groff. 61. The value of the Excavator provided by Groff to Weaver and/or CBC is $60,500.00. 10 WHEREFORE, in the alternative to Counts I and 11, above, Groff respectfully requests judgment in its favor and against CBC, in the amount of $60,500.00, together with interest, costs, and other such relief as this Court deems appropriate. McNEES WALLACE & NURICK LLC By Susan V. Metcalf , Esquire I.D. No. 85703 Megan N. Dreisbach, Esquire I.D. No. 201418 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Attorneys for Plaintiff Dated: August 0 2006 11 ?c?'b? ?" FT I TRACTOR A EQUIPMENT, /NC. EQUIP FAX NO. 7177661580 ........................... P, 08 Meohanloeburg *Ephrata * Stab Collegs (500-3"ROFrofge : 1 Valenta * New Stetson (577-3.3•GROFF) GROFF TRACTOR & EQUIPMENT,.INC. ("GROFF-) AND THE CUSTOMER AGREE AS FOLLOWS TO THE LEASING OF THE EQUIPMENT DESCRIBED BELOW: RENTAL CONTRACT 10/11/05 13:08 Reservation: P 006668 Date: 10 /11/05 Active: Yea Customer : WE064P WEAVER MASTER BLDRS Phone Day l?UC /0" KD?^ (724) 538-3700 PO BOX 449 . MARS, PA 16046 / Notes : CUSTOMER TO GET 1814, 24" (:' BUCKET$. Sold By :. EHRIN JOHN EHRIN Damage Waiver: No 0 OF THIS U REPRESENTS AND Tax: 27.00 -envy Total: 477.00 V THE ? FORCE AND IZGA EFFECT AS HAS THE AU ORM AND POWER TO SIGN (CUS70MF.R'9/AGCNI'S 9IGNATURF.) IDATERETUIWED) FRUCKINO AGEM SIGNATURE) IDNI'E I E ZI SEDI IGHGFF9 9W NA9'UREI (DATEI- R UCMO AGENT SIGNATI j (DATE RETUNNCDI "APR-13-2006 THU 08;12 AM GROFF TRAC9'OR 14 EW1P FAX NO. 7177661580 I r ±rA'xrsy sera sir TNAMN i E49fi% NTe INC. For Everything Under Conetruodon TERMS AND CONDITIONS OF RENTAL AORENAtM THE TERMS AND CONDITIONS BELOW STATED, 1'OGETIM WITH THOSE ON THE FIRST PAGE, CONSTITUTE THE AGREEMENT BETWEEN OROFF AND CUSTOMER. 1. DafirA "Oroir mare Groff Tractor a Equipment, Inc. "Cudaner,"'you," and "your" moan the person or unity identified as such on the first page of this agrawooK including any reprawmilive, used, officer, or amptoyee dw vof "Egdpmert" mcana dm item a gems idoatdW u such m the first pogo of this agreement and my moswodes, athhdrmats or aura similar hems delivered to Customer. "Mouth" or -numdd " as used in this Rental Agreement stall man 28 consecutive calendar days. 2. Authority to Sim Any iuAvWW dgoog this agresma represents and warum that he or she is of legal age, dad has dw authority and power to dWthis rental agwoment as w fbr the Customer. . 3. Lase: Read Period. Oroffhereby losses to Customer and Customer hereby lase Sam Gaff the Epdpmsm under the Terms red Conditions described in this Rental Alpemhwnl 11u renal period includes the term described an page I of this Agreement and arty additional die during which Cusmur retains poaeadon of the Equipment. The rental period shall begin om and induce trop dale of delivery of the Fquipmertl either b Customs or b a artier for tramit to Customer, and dell and on and Include the date of delivery back to Groff. If customer fills to deliver the Equipment at tbc expiration of the bear specified on pop 1 of this AgreemaK Customer WWI be responsible for additional oveliew charges, an w AbM in paragraph 4 below. 4. Reid Charges. The rental era shall not be subject to soy reduction on moowt of anus-working tree a my diner time period during which the Equipment is leased. Shedd the Equipment be used for longer periods than the term specified out page 1 of this Agreement, ovatine slWi be paid by CUaornrr to Groffat the daily rote. 5. Sarviot C3uraa Customer sgroa to pay a monthly service clause of 1.5% on any account balance outstanding for a period in excess of30 days. 6. Transportation Expense. Customer shall be responsible for all expenses arodated with the lading, unloading, delivery sed transportation ofthe E.quipmead to and from Oroffs premises. 7. Use of Emianod, Custorm agree the the Equipment doll be used solely in the cendnct of Costumes business and within customer's possession and under its control, and that said Equipment will be operated by oompdm employees of Customer Customer is familiar with the proper operation and use of each hem of Equipment. Customer acknowledges than the Equipment includes an opaatal mamai supplied by the numftcmre and agrees to read and follow all instructions for the use and operation of the Equipment. Customer wow to notify Groff fmmu4dely, if such op catoes maural is net delivered with the Equipment. Customer agrees, at aaomeh sale espouse, to comply with all applicable local, state, and faderal laws, ordinances, and regulations, (including O.S.H.A) which may apply to the use of the Equipment. When the Equipment is rot in use, it will be kept in a protected sod. Customer agrees not to remove the Equipmant fine the location specified an page I of this Agmemem, if my is so specified, except with the express written consent of Oroff (which con amt my be withheld in Oro&& 9010 disoraion), or ss necessary in add to retam the Equipment to Groff. Customer acknowledges than Groff her the right to inspect the Equipmont P. 09 while It L in artms&a possession, but that Oreff her an responsibility to do W. 8. Maintenance and Customer dull be responsible for and dug bear to expense of all Awl, lubrication and maintenance fa each hem of Fquipmnd. Groff undertakes no obligation with rasped to ugirs or replacement of pub, alb hownK aoassaias or equipment, emapt u provided is Prapaph 16 of do RMW Apamrd. Customer ball, at be etpeme, at all dmea during the base bw*4 maintain such them of Equipment Im good operating orday ntpah and agape rao m and shall ladvicate and practice preventive midamuce at regular hdwals u act fifth in the mandkonesn's service car operator's nasal. Customer agrees to mimsin unt Bestowed H the were condition as delivered to It by Oral% roman" weer and bus, u defined below, excepted. Customer agmu that in effecting maim mane and repairs, it will have arob work pefammd only by Omff or by qualified persons who are udrdbabrym Groff. 9. R,asaeahle J?rear ad Tar. Rome" war and we of the Equipment shall mean only the normal dusiaMkn of the Equipment awed by admary, sad reuomNe uu an an dgldbar pr day (40-how par week) beds. The following " not be deemd reasonable wear and tar: (a) damge resulting few lu* of hddcefon w msbdaume of necessary oil, water and air pressure levels. (b) my drnage ramping from lack of servicing a preventive msintmaooe sugpow as the mstatho pr's "Moo a opervWx mamsi; (0) o, a resulting Am any oelfislm, overhrming, or improper operation. Including overloading a amen lug the rated capability of the E luipmmut; (d) damage in the maw of Amts, bending, loving, or seining of the Equipment or my part ihaeol: and (a) my Mho damage to the Equipment which is ad considered ordinary and reasonable in to equipment rental bulux". 10. jyAwarljj>g. Customer agues to hdesmil'y and hold Groff hamdm Ram my bodily idmy, death w property damage, liability, ra sa do, bushsas or financial leas, dtamyfeas, caw and aster u4, arising out of the mudumanw, apa diwk me, lading, unloading w inoperability of the said Equipmad during the Rental Period, or otherwise arising out of Customer's w0. coney, or possession of the Equipment. Customer WWI be liable for my and all injury, and damage to sad Squipmm from whatever mere. This provision shall nrvl* termination of this Agreement. i 1. Imss OfCusomme mto rdmlarae Groff fer all losses rod damages to Equipme Imred oocasiomd by fire, theft, ffooQ accident explosiM wreck,.weather shi kes, riot, any criminal act, or my and all other awe, whether simile to the above causes or not, tbn may ocam ing the lass tam. Customer will pay Groff the than fall replacement list value together withtbe fall regular raid we will such. Equipment is replaced. 11 V=ULWJkWyegllt Customer shall be responsible for all loss or damage to the Equipm ed Sous Vas $I= oddetvey, ofte Equipment either to Customer Otto a carrier for transit to Customs, until the time of delivery book to Groff. If the Equipment Is returned in a damaged or excessively were andhlon, asamer doll pay Geoff the reasonable cost of repair togotiwr with the full rogutor read the mall sit repaint have base completed. Groff dull be undo no obligation to oommmoe repair work until Customer has pad to Groff** estmatod cost of each wok. Groff shall be the sole jdge of the mein necessary to place the Equipment in god repair and operative condition. 2of3 Wtiala: THU 08;13 AM GROFF & EQUIP 13. 14sllpo Customer, at its exp urc, shall keep the Equipment tau new far the sum of this lease sad any renewed a extoosta s dwoof, for the full replacement value thereof, against all risb of direct physical Was or dnsago.. Custurnor, at Its expanse, shall purdus , and maintain liability Insurance for bodily Wary and ptPpaty dwage,covering the Equipment in eo rbind,arnouns 6f not lam alai lit.W9,000 for each occurrence. Vvi a nor sodVInrpply'lick. Goff prbo v WxIs.lgeuraaor by-.C'3afdGesta PW'wmqe for We Bqulp oral and naming Gro as loss payw sad additional insured, such Insurance and evidence thcrmf W be in amounts and form sadalictay to Groff The C dficalc of lasusance ad policy " provide that Omff shill receive nee less than thirty (30) days' naiaptior to eery cancellation of the insurance required hat uder. 14. Aflomm'Foor. . creptW legal)nooeeding is emamwed by Groff to reface any Pat= Aj46 n Groff shall be anlRIW to collect from (ldoma OR Costa and expenses hmrred in such proceeding including ... without limitation Oroffs attorney's fw and costs. -? Iv Tids_ W EauiThis agretareat is not a contract of sale, and title to the Equipment shall at oil times be vatted in Groff. Unless covered by a specify auppkmenW agemsa t gipKd by OmfG Cmtoroer has no option or right to purchase the Egdpnumt. Customer shall keep the F"Ipme nt free sad dearodalt lneckanhes and oche them and aauusubasuscea. Cummu shall give OroR lanuodate "let of any levy, moue or attachment made or adempted upon said P.grtiptamt end agrees to iademadfy Groff against sit losses and danuges er11uM by such mduu. CusWmer shall have no rights to sublease the BgNpa wK or assign this Agreement. ._ 16. W Chod' warrants to cusWmer that also Equipment will be delNaed so Cmtatat in good operating ceadition. Should the Evocator fag W Milano W Me above warranty during be tam of this "menut and provided suds failure to wofam Is In on way attributable to the felt of Cusixoa, Groff dull repair or aplw the Equipment Mm obnllat equipo eat in waldag ads If such equipment is trat". The secalpt and sooptnce by Oekrer of the Equipent shall constitute C ssonwes agoemant and aclmmtedgmant that the Equipment is in good op"ing condition, takes CnmOmer 13111001 a dual. is writing, W Groff within duce (3) days after receipt of the Equipau at specifying in debil alt of Custome, Objections to the condition otthe Equipment. 17. DISCLAIMER. THE FOREGOING WARRANTY SHAH. NOT APPLY TO DAMAGE OR DEFECTS TO T11B.EQ MUENT CAUSED BY ORDINARY WEAR AND TEAR AND IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER witnm N, ORAL, EXPRESS OR adFLED (INCLUDING ANY alai BD WARRANTY OF ,MERCHANTABILITY OR FrrN SS FOR A PARTICULAR PURPOSE, SUCH IMPLIED WARRANTIES BEING EXPRESSLY DISCLAIMED IFIBREBY). CUST(MIMS SOLE AND EXCLUSIVE REMEDY FCR ANY DAMAGE OR DEFECT IN THE EQUIPMENT, AND FOR ANY DAMAGES OR LAARCIM CAUSED EY ANY DAMAGE OR DEFECT IN THE BQUIPMBFIT, SHALL HE AS D13SCRJBED IN PARAGRAPH 16 ABOVE. GROFF NEITHER ASSUMM NOR AUT"opzo ANYONE ELSE TO ASSUME FOR IT ANY OTHER OBLIGATION, THE F'OREOOING WARRANTY SHALT. CONSTg1JTE CUSTOhtlat'S SOLE REMEDY AND THE SOLE LIABILITY OF GROFF UNDER ANY LEGAL THEORY OR THEORIES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, WARRANTY, UNJUST ENRLCHM04T, QUASI-CONTRACT, NEGLIGENCE, M[SREPOSENfATION OR FRAUD. GROFF SHALL NOT, UNDER THE FOREGOING WARRANTY OR TINDER ANY OTTER LEGAL THEORY, BE LIABLE TO CUSTOMER FOR ANY LOSSES, COSTS, DAMAGES OR PENALTIES, INCLUDING ANY INDIRECT, UNIIQUIDATED, SPECIAL, INCII)ENTAL, CONSEQUENTIAL OR FAX NO, 7177661580 P, 10 PUNITIVE DAMAGES, LAST PROFITS, REMURSEMWr FOP, TM EXPENSES OF LABOR, TRANSPORTATION, INSTALLATION, OR REMOVAL OF TIM EQUIPMENT. BUSINESS BIfERRUPTION, MOBILIZATION COSTS, DELAY DAMAGES OR ANY OTM EXPENSES WHICH MAY BE INCURRED BY CUSTOMER, ALL OF WHICH ARE EXPRESSLY D49CLARAW. NO SET-0FF, RBCOUP1dENT, OR DMXJC 01 OF AM KM SHALL BE MADE FROM ANY RENTAL PAYMENTS POR ANY REASON, it. Falluv to bum . if Cwharw shill fail to make say metal payment when due, shall atlmg(•W oak a encumber any ludaat In the EquiptraM, shelf cease dokg bwk4os z9 a gOiag oonoaa, al3all ins4ote a have fnstitulW rgadmt it any Pu? kP aada my bnobupuy a Insolvency law, shall make w a s igrunant for the beonft of creditors or shall fill W comply with my other provision of this, Agroaoad, or if my sthdtaan, execution, writ or Omar prows is ivied against the Egoipmant or any of Cumatwfs property, Groff may, imroadiateLy and without notice declas the edW balance of the rental payments due and pay". In addition, Groff may bkc imaudixle Possession of and raoov'e from the Possession Of Cuaamer without legal proaa and at do expense of Cuatamts the f nix aat rested, Caoroa hereby gob Groff dN gut purpose unobstructed agree and logical over say ptopesty owned, Ioased or 001410404 by CuNOmer. In addition to such rights and rome" Ckoff way Awe at law or is aquhy, Groff slWl have the right to confats judgment against Custom If the Agrannesat m provides. 19. Jurisdiction sad Venue. Any action based on any dipuht sriaWg out of or related to this Agreement shed he brought in do CoW ofCouunoo Pico of CwWxdad Carty, Feuuylvanla, or the Unshed States DIWLC Cant for dv Middle Dustier of Pemaytvada Cuatomer imroabl , oanaoea to vasmn ad excusivo jurWiaton k suds Dooms. 20. QoncttiolgUx. This Agomteot shall be governed by and eostreed in accordance with the laws of the Camromraft of Pcmaylvnia without ref reate to its cola alaw provisions. 21. Credit Accounts to the event 16at P.quipoad b paid pacmaat to a Case Credit Vatsge Account VCtse AOrou l!), C4twna beaby aumorkes Graff to Burge a4 satauts, ioidiag rgnlal amouns, o"Iftm Cheeps uw service charges, to said Case Account sod Caatomer ages a pay all doges according to the tame and conditions of the Credit Agmasest and 0d; Rerdd Agreement 22. Wire AvMWi9AQW This wrium agreement repaints the entire. agmar rant between Cnstopia and Chuff There are no other rtpnvsenlatWns or agreements at included hock. None of Chaffs rights a Customers lights my be tinged acee9t to wdting, signed by both Groff and Crsiomer. The on of Cutomer'a purchase order naanber onthis agroweed is far Gbstomor's omvedma only. This row agreement aspanodes my purchase order a Omer Customer provisions a form whether «nl to or received prim, a subsequent to Ibis ravel agamuu.. 23. No Walm AnyfaRmeeCOmfftoin$WWmstdctpuf-*kmmby (,W Wnser of any tams and conditions of" agreement shall as be consboad is a waiver of Oroffa right to demand atria oonpliawe. 24. Sombilits. If any provbkn ofmts Agoemmt b fbmd tobe illegal or unmtbrouble, the Oder pmvislom hereof shall not W dWW ad shall 00061146 in fail iota sad efied- _ 25. Miscellaneous. The akgula, wiaa used in referring to Customer shall be kampreted to refs to and indudv the ptual samba wlmmer necessary and U Cumoom an; two or more In aconba, their liability hereunder shall be joint and myord. All right, powers and octtadks shall be cumulative and not alternative and shall be in addition to all rights, powers and re nedia,iroa to Groff by this Rental Agreement a otherwise by low. 3 of 3 (Authorized Signature) DOIe:'/C'/? &4;blf S 210 NationwidV On Your Side'" 11603 W Coker Loop Suite 200 * San Antonio, TX 78216 * * McNees Wallace and Nurick LLC Susan V Metcalfe PO Box 1166 100 Pine St Harrisburg, PA 17108-1166 INSURED : Weaver Master Builders, Inc CLAIM NUMBER : 54 37 PR 893807 11112005 51 DATE OF LOSS : 11-I1-2005 09.3450 a. m. 07-31-2006 212 July 28, 2006 Our obligation as an insurer is to reimburse you for losses which are covered under the terms of your policy. After carefully considering the evidence, we have determined that the claim in question is denied based on our insured's decision to not pursue the claim. Per our insured's policy, your client's rights as additional insured pertain to our insured's Commercial General Liability Coverage only. Attached to this letter is a copy of the policy language for an additional insured. If at any time our insured wishes to pursue claim for the stolen excavator, coverage will be afforded at actual cash value subject to the policy limitations. For this reason, payment cannot be made. If you have any questions, please feel free to contact me. Nationwide Mutual Insurance Company Nicole Holguin Claims Department (877)772-7222 Ext. 3941 cc: Weaver Master Builders, Inc SAVARVA - Agent Number: 0024982 Any person who knowingly and with intent to defraud any insurance company or other person files an application for insurance or statement of claim containing any materially false information or conceals for the purpose of misleading, information concerning any fact material thereto commits a fraudulent insurance act, which is a crime and subjects such a person to criminal and civil penalties. aecam E)(k,bVq, C? .. .. ..........................69-8' .11;23_FAI_724 ???? TRACTOR & EQUIPMENT, INC. For Everything Under Construction S O L D T 0 C //act ???f /Y u • L e oee. OAtiee . ... Gr o .. 4f..T.........racto.r............C...o . . ......... A :. .. . & & u. 02 .................... ES ORDER L S JK48 0 UM sea R1a ? [J I mom airy GAMBLE PIKE 410 ROLLMYtlRDOE ROAD N 44PlFABIWfVAIA.EY IIOM PA 7? SELLEFOPMPA18623 U MECHANI EPHRAKFAI7622 G, 1 1? ? (717) m P14)aTJ'aW F 41 3 6M14011 011 AAX- m7)730020) FAXm7)7304517 FA _ ? i) { [I NM OUnON E71Ba0UTH 1' 010PRTSBURfIHROAD OLDROIIT a NEWSTANIDN.PA1Sa7Y YN6NMK AIMM (M4)75601a4FAXm4176S0I29 (M)BW159 ROt(7241aYBIM IG!( ? er • ! t f'roAt;e. /E,,pi •e j7PCe/en S f? ndq re? FC.eYrvr?.s u 1 I I r1 YA/?: ?.? ?. b? rZ r.7 1c.b ° Kv66er 7r.aeKS ' • €?Co Jere n. t ,??, .'n c / l D .w i Sw,? 7n ve/ / /a r pr, _aLko z CY T oGt?S O/• o Ace. / /X/ - ? vo O• TRADE-INS Purchaser hereby bargains, sells and conveys unto Seller the following described Trade-In 1 MACHINE Equipment and warrants and certifies It to be free and clear of liens, encumbrance, and security in- terests except to the extent below. 2 FREIGHT EL SERIAL NUMBER TRADE ALLOWANCE YEAR . -MAKE . MOD - TOTAL. 3, ' P .... .: RICE - LESS 4TRADE ALL. - 5LE6S RENTAL OUTSTANDING LOAN WITH: ACCOUNT NUMEER TOTAL TRADE INE 4 PAID ALL. (L 1 _ -ADJUSTED : ourar nD O , E?r a lN BAL OWED .:? -' ""' ' . S- - o S 6'o 7 S Of c 3??'?- WARRANTIE TAX • NEW ?/k (Of 9) " USED-AS IS. No warranty expressed or Implied V' NG ` / /t S FE TAX • / L _.. _. _ ._ .. __._. _.. U OTHER Terms 8 Cond. _._ p g "ALL WARRANTIES, IF ANY, BY A MANUFACTURER OR SUPPLIER OTHER THAN THE DEALER ARE THEIR WARRANTIES, NOT DOWN THE DEALERS, AND ONLY SUCH MANUFACTURER OR OTHER SUPPLIER$HALL BE LIABLE FOR PERFORMANCE UNDEF,SUCH 10 PAYMENT WARRANTIES, UNLESS DEALER FURNISHES BUYER WITH A SEPARATIZ WRITTEN WARRANTY OR SERVICE CONTRACT MADE BAL DUE 11 BY DEALER ON ITS OWN BEHALF. DEALER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY (??HAS IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PART13ULAR PURPOSE ON ALL GOODS AND SERVICES SOLD " " OUTSTANDING 12 AS I6-NOT EXPRESSLY WARRANTED OR GUARANTEED . BY DEALER AND ON ALL USED PRODUCTSWHICH ARE HEREBY SOLD BAL FADE ALL WARRANTY REPAIRS MADE UNDER THIS AGREEMENT WILL BE M WE AT THE GROFF TRACTOR & EQUIPMENT INC. SER- VICE PACILITY. THE CUSTOMER IS RESPONSIBLE FOR ALL HAULING CHARGES TO AND FROM THE GROFF FACILITY. 1 Read this contract before you sign it. NOTICE 2 You are entitled to an exact and completely filled In copy of (his contract when you sign It. Keep it to protect your legal rights. TO 3 Purchaser acknowledges receipt of a fully completed copy of this contract and Purchaser waives notice of the acceptance or reaction of this order by the seller. BUYER 4 The additional terms and conditions set forth on the reverse side are a part of this contract and. are Incorporated herein by reference 5 Seller retains a security interest in the purchased goods until the price is fully paid. Accepted for GROFF TRACTOR & EQUIPMENT, INC. Purchas COMPANY NAME 1 tc -_'?----?DSarc(rIl I ( z `1 6s 11 BY: X VIH A E GNA'TURE TITLA GATE GROFF T a E SIGNATURE TITLE DATE IT 10 llnmcocrnnn TuaT TN IS IR THE FNTIRF Ar,RFpMFNT RFTWFFN THE PARTIES. DAT DUST ACCT NO. GOYNrT wN,nw -maw ---•---^-• 11)4/US' /?rr7A, 6?Cpv S3f ^3o>O CITY' uusao wMANUFACTURER- :'"MODEL'- -- SERIAL NUMBER "STOCK NO:- PRICE sou. o• ! 77-;4(evcl,; -rC? 177.5"'_ /?s-j a 9771V ffdwo, ., GPOfii TP$CtOP & Hgll. CO. TERMS AND CONDITIONS ........................... ..................... _ 003 z i '7: PRIL°t? "All prim quoted 'Fiereinare exdueNa: ol'litrty City, State, or Federal taxes on. manufacture, a6lee,, Ilea eatl4he Ipce. Whenever applicable, the buyer shall be solely responeW1640T Payment thereof. 2. PAYMENT: Payments shop become due In accotdarce with the terms hereof. Finance charges are subject to rate approval by finon- dal institutions. The terns of sate are subject' to'cradit approval and seller may at any Lire prior to delivery modify the terms of payment originally specified to assure prompt payment for the equipment ordered. 3. SECURITY INTEREST: Salter shall retain a security Interest N the equipment delivered hereunder until the Iota; selling price, In- eluding taxes, delivery and other charges, Is paid in full by buyer. Buyer agrees to sign ant deliver to seller any additional security Sgrbemert required by seller. Buyer hereby appoints Seller ea. buyer's agent to sign and cause to be glad on behalf of buyer any and all financing statements deemed necessary by seer to perfect the security Interest granted by buyer to seller hereunder. .,: 4., WARRANTY:: Separ- ivsieartF'.eapk'.rievi :product: arYhLy.'tYil: lbifer pei9od..M hourly IJbiItatIoJA:ubtat QsJjad .by.: the.:fitaiiilfaclbroi'.thereot:.. .::. . . . Seller`s sole obligation, ,u)dgr, th(w. iparraaly ohptb;hirAlFolt4t4?; repeidrig,. replanting: 'or. allowing credit-for,, at eN1BAs 4p8en.'aily part',. .: or component which under riornat and proper use anal mainfinabca provas tiefedive In material or.worf a ulship.- THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHICH EXCEED THE AFORESTATED OBLIGATION ARE HEREBY DISCLAIMED BY SELLER AND EXCLUDED FROM THIS AGREEMENT, UNLESS OTHERWISE EXPRESSLY STATED ON THE .: FACE OF THIS FORM. USED PRODUCTS ARE SOLD ON AN "AS IS" BASIS AND THERE IS NO IMPLIED WARRANTY OR MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE: UNLESS.OTRERWISE EXPRESSLY STATED ON THE FACE OF THIS FORM. . FURTHER. THERE ARE NOORAL.OR WRITTEN PRGMISES;.TERMS, CONDITIONS, REPRESENTATIVES OF•QUALITYOR FITNESS FOR ANY PURPOSE; OR, WARRANTIES. EXPRESS OR IMPLIED. CONCERNING THESE PRODUCTS, OTHER THAN THOSE CON- TAINED HEREIN IN WRITING, IF ANY. ,. . BUYER AGREES TO INDEMNIFY'AND HOLD SELLER HARMLESS FROM AND AGAINSIALL LIABILITY AND EXPENSES BASED UPON DAMAGE TO PROPERTY OR INJURY TO, OR DEATH OF, ANY PERSON ARISING OUT OF OR ATTRIBUTABLE TO THE USE OF SAID MACHINERY. . . 5. DEFAULT, AND REPOSSESSION: 0 buyer shall default in the performance of any of the terms, covenants and condpions :ef this .....Agteement, seller may declare '.a full amount due and payable without notice or demand and may repossess the equipment. Buyer agrees to pay aanmsy'e fees in the amount of Nrenry, (20%) percent of the amount due and p$yabie, together with any other ex- panses incurred. Buyer shall be responsible for any expenses incurred by Seller or Its agents repossessing any item of equipment 6.,DELAYS, Seller shall not.be liable for, loss of. damage :QyB, to delay in delivery, resglung from any cause heygOd. seller's reasonable ,. control, including but +Sot I'imited to Sots. Of Dori„ acts or gmissioha of the buyer, acts of civil or military aufitorily, Stec, -strikes, factory shutdowns or alterations, embargoes, War, 00 or deray.in transportation. 7. INSURANCE: The buyer shali.st his. ownexpensE,, butiq..ths. fisme.and for the benefn.of the, seller, Jhsure said-befulpment. against loss mat may occur or.bacauked'tiy:fire,'ftCCd, eirplomlofC,:iheft"tiY:di}rerwlae, and HablINVIof any and.. every Wad'^uflll4 the-96140g price is paid in tullpy buyer. - - B. CANCELLATION Buyer may cancel its ortler, reduce quantities, revise specHkaflons or extend schedules only by mutual agree. merit as to raascnable and proper cancellation charges which shalt sake into, account expenses already incurred and commitments made by the ss;ler pi.4alnsl any lass resulting therefrom, 9. ACCEPTANCEirTfil6i?S+acuipy Agreement is underetood and :mended to be the final expression of in, agreement of the :parties hereto and :8 q comp(oliFend ekclualve ste.loment of ms torts at this Agreement Ali prior or cuntempomneous representafives made by the parties are merged into this Agreement. - -" : .. ADDITIONAL TERMS AND CONDITIONS . 1. When vada-iri equipmsf{,t,is not to he delivered to the Seller until delivery of the equipment purchased by this order,' this trade-iri equipment may be re gi)1alsed at that time and awch reappraisal valve shall determine the allowance made for such trade-in equip- ment When the reappraised value Is Jess than Ito original trade-in allowance shown on Ihis form thepurchaser may terminate this order, however, this right of termination must be axercieed prior to delivery of the equipment by Seller and surrender of the trade-in equipment to Seiler. 2. In the event Dealer's price is changed prior to delivery, the purchase price shall be adjusted accordingly. If such price change results in an Inorease,.purehaaer has the option of cancelling this order In writing Immediately on being notified thereof. 3. Service charga of 1 `ri% per month which amounts ;ri 18% per year on all balances past due on purchasers open account. 4. This equipment is sold 'As Is, Where Is". P111011088M are roamed that the equipment shOltid be examined before ties to deiermina whether or not, the equipment is In compliance with the Federal Occupational- Safety and Health Act of 1970 and is safe for Its In. tended use. Groff Tractor & Equipment, Inc, shall not be responsible for the purchasers failure to examine purchased equipment and to perform any repairs before placing the equipment In service. ,c t VERIFICATION Subject to the penalties of 16 Pa. C.S.A. §4904 relating to unswom falsification to authorities, I hereby certify that I am President and CEO of Groff Tractor & Equipment, Inc., and am authorized to execute this Verification on its behalf, and that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. A,& IQ(- - Michael Sav do Dated: July ;f, 2006 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon the following entity, via first-class mail, postage prepaid: Weaver Master Builders, Inc. 107 Ramblewood Lane Mars, PA 16046 2mµ4 V, Susan V. Metcalfe Dated: August,, 2006 r-? n c? -n '' n r z c? ca v : , c l _ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GROFF TRACTOR & EQUIPMENT, INC. CIVIL ACTION - LAW Plaintiff, V. WEAVER MASTER BUILDERS, INC., and COMMERCIAL BUILDING CORPORATION, Defendants Case No. 06-4365 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND PETITION FOR CHANGE OF VENUE Filed On Behalf Of Defendant Weaver Master Builders, Inc., and Defendant Commercial Building Corporation, Counsel For This Party: Brenda B. Sebring, Esq. PA I.D. #33379 William E. Otto, Esq. PA I. D. #32716 Sebring & Associates 2735 Mosside Boulevard Building C, Fourth Floor Monroeville, PA 15146 (412) 856-3500 Firm #105 K:\WEAVER\Groff Equipment Loss\POs to Complaint 101706.wpd IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GROFF TRACTOR & EQUIPMENT, INC. Plaintiff, V. WEAVER MASTER BUILDERS, INC., CIVIL ACTION - LAW Case No. 06-4365 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND PETITION FOR CHANGE OF VENUE and COMMERCIAL BUILDING CORPORATION, Defendants NOTICE TO PLEAD To: GROFF TRACTOR & EQUIPMENT, INC., Plaintiff You are hereby notified to file a written response to the enclosed PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND PETITION FOR CHANGE OF VENUE within twenty (20) days from service hereof or a judgment may be entered against you. and Defendant Commercial Building Sebring & Associates 2735 Mosside Boulevard Building C, Fourth Floor Monroeville, PA 15146 (412) 856-3500 K:\WEAVER\Groff Equipment Loss\POs to Complaint 101706.wpd Corporation PA I.D. # 33379 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GROFF TRACTOR & EQUIPMENT, INC. CIVIL ACTION - LAW Plaintiff, V. WEAVER MASTER BUILDERS, INC., and COMMERCIAL BUILDING CORPORATION, Defendants. Case No. 06-4365 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND PETITION FOR CHANGE OF VENUE PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND PETITION FOR CHANGE OF VENUE AND NOW, comes Weaver Master Builders, Inc. ("Defendant Weaver") and Commercial Building Corporation, ("Defendant CBC"), by and through their attorneys, Sebring & Associates, Brenda B. Sebring, Esq. and William E. Otto, Esq. and files the within Preliminary Objections to Plaintiff's Complaint and Petition for Change of Venue, in support of which, Defendant Weaver Master Builders, Inc. and Defendant Commercial Building Corporation aver the following: Background 1. Plaintiff's Complaint sets forth a series of claims against Defendant Weaver for an alleged breach of a lease agreement and against Defendant CBC for an alleged breach of a sales application. K:\WEAVER\Groff Equipment Loss\POs to Complaint 101706.wpd 1 2. Plaintiff avers that Defendant Weaver leased a piece of Plaintiff's construction equipment (the "Equipment") pursuant to a written rental agreement (attached to the Complaint) (the "Rental Agreement"), in October, 2005. 3. Plaintiff avers that Defendant Weaver is liable for the cost to replace the Equipment after it was stolen by an unknown third-party in November, 2005 (the "Theft"). 4. Plaintiff avers that Plaintiff and Defendant CBC entered into negotiations for Defendant CBC to purchase the Equipment in November, 2005 (the "Sales Application") 5. Plaintiff avers that Defendant CBC is liable for the replacement cost of the Equipment due to the Theft. 6. Defendant Weaver is a Pennsylvania corporation with a registered office in Butler County, Pennsylvania located at 107 Ramblewood Lane, Mars, Pennsylvania 16046. 7. Defendant CBC is a Pennsylvania corporation with a registered office in Butler County, Pennsylvania located at 107 Ramblewood Lane, Mars, Pennsylvania 16046. 8. Plaintiff is a Pennsylvania corporation and maintains an office in Butler County, Pennsylvania located at 1010 Pittsburgh Road, Valencia, Pennsylvania 16059. OBJECTION NO. 1 - IMPROPER VENUE 9. The averments of paragraphs 1 through 8 of the within Preliminary Objections are incorporated as though the same were set forth herein fully in verbatim. 10. Defendant Weaver does not have a registered office or principal place of business located within Cumberland County, Pennsylvania. 11. Defendant CBC does not have a registered office or principal place of business located within Cumberland County, Pennsylvania. KAWEAVER\Groff Equipment Loss\POs to Complaint 101706.wpd 2 12. Defendant Weaver does not regularly conduct business anywhere in Cumberland County, Pennsylvania. 13. Defendant CBC does not regularly conduct business anywhere in Cumberland County, Pennsylvania. 14. The Rental Agreement was negotiated between Defendant Weaver and Plaintiff's agent, John Ehrin, out of Plaintiff's Valencia office located in Butler County, Pennsylvania. 15. The Rental Agreement was signed by Defendant Weaver in Butler County, Pennsylvania. 16. The Sales Application was negotiated between Defendant CBC and Plaintiff's agent, John Ehrin, out of Plaintiff's Valencia office located in Butler County, Pennsylvania. 17. The Sales Application was signed by Defendant CBC in Butler County, Pennsylvania. 18. Plaintiff marked on the Sales Application that the office the Sales Application was being originated from was Plaintiff's Valencia office, located in Butler County, Pennsylvania. 19. The cause of action arose in Butler County, Pennsylvania and not in any other county in the Commonwealth of Pennsylvania. 20. No transaction or occurrence out of which the cause of action arose took place in Cumberland County, Pennsylvania. K:\WEAVER\Groff Equipment Loss\POs to Complaint 101756.wpd 3 21. The Equipment which is the subject matter of the action was located in Butler County, Pennsylvania at the time of the Theft and was not located in Cumberland County, Pennsylvania at any time. 22. Pursuant to Pa.R.C.P. Rules Nos. 1006 and 2179, venue in this Court is improper. 23. Entry of appearance in this case does not constitute a waiver of any defenses, including questions of venue, and no such waiver is made or given by Defendant Weaver and Defendant CBC hereunder. Pa.R.C.P. No. 1012(a). WHEREFORE, Defendant Weaver and Defendant CBC requests this Court to dismiss this action against Defendant Weaver and Defendant CBC because venue in this Court is improper. OBJECTION NO. 2 FAILURE TO CONFORM TO LAW OR RULE OF COURT - COUNT I - BREACH OF RENTAL AGREEMENT 24. The averments of Paragraphs 1 through 23 of the within Preliminary Objections are incorporated as though the same were set forth herein fully in verbatim. 25. Pa. R.C.P. Rule 1019(i) requires that when a claim is based on a writing, the pleader must attach a copy of the writing. Pa. R.C.P. Rule 1019(i). 26. Plaintiff has failed to attach the entire copy of the Rental Agreement. 27. Plaintiff failed to attach a copy of the termination of the Rental Agreement. K:\WEAVER\Groff Equipment Loss\POs to Complaint 101706.wpd 4 28. Since Plaintiff's Count I-Breach of Rental Agreement fails to conform to law or rule of court, pursuant to Pa. R.C.P. Rule 1028(a)(2), Count I-Breach of Rental Agreement of Plaintiff's Complaint must be dismissed or amended. Pa. R.C.P. Rule 1028(a)(2). WHEREFORE, Defendant Weaver and Defendant CBC prays this Honorable Court to enter an Order dismissing Count I-Breach of Rental Agreement or requiring Plaintiff to amend Plaintiff's Complaint. OBJECTION NO. 3 DEMURRER - LEGAL INSUFFICIENCY - COUNT I - BREACH OF RENTAL AGREEMENT 29. The averments of Paragraphs 1 through 28 of the within Preliminary Objections are incorporated as though the same were set forth herein fully in verbatim. 30. Plaintiff has failed to aver the elements necessary to sustain a breach of contract action. 31. Plaintiff has failed to aver that a contract was in effect between Plaintiff and Defendant Weaver at the time of the Theft. 32. Plaintiff has failed to aver that the Rental Agreement was not terminated prior to the Theft. 33. In the absence of averments sufficient to prove the existence of a contract between Plaintiff and Defendant Weaver, Plaintiff's Count I - Breach of Rental Agreement is legally insufficient and fails to set forth a cause of action upon which relief can be granted under any theory of law. 34. Pursuant to Pa.R.C.P. Rule 1028(a)(4), Count I - Breach of Rental Agreement K:\WEAVER\Groff Equipment Loss\Ms to Complaint 101706.wpd 5 of Plaintiff's Complaint should be dismissed. Pa.R.C.P. Rule 1028(a)(4). WHEREFORE, Defendant Weaver and Defendant CBC prays this Honorable Court to enter an Order dismissing Count I - Breach of Rental Agreement of Plaintiff's Complaint with prejudice. OBJECTION NO. 4 DEMURRER - LEGAL INSUFFICIENCY - COUNT II - BREACH OF SALES AGREEMENT 35. The averments of Paragraphs 1 through 34 of the within Preliminary Objections are incorporated as though the same were set forth herein fully in verbatim. 36. Plaintiff has failed to aver the elements necessary to sustain a breach of contract action. 37. Plaintiff has averred that a contract was in effect between Plaintiff and Defendant CBC at the time of the Theft. 38. Plaintiff has averred that the Sales Application was in existence at the time of the Theft. 39. Plaintiff's Complaint, Exhibit "C", shows that Plaintiff had not accepted the Sales Application. 40. In the absence of acceptance of the Sales Application by Plaintiff, no contract existed between Plaintiff and Defendant CBC for the sale of the Equipment. 41. In the absence of a contract between Plaintiff and Defendant CBC, Plaintiff's Count II - Breach of Sales Agreement is legally insufficient and fails to set forth a cause of action upon which relief can be granted under any theory of law. KAWEAVMGroff Equipment Loss\POs to Complaint 101706.wpd 6 42. Pursuant to Pa. R.C.P. Rule 1028(a)(4), Count II - Breach of Sales Agreement of the Complaint should be dismissed. Pa. R.C.P. Rule 1028(a)(4). WHEREFORE, Defendant Weaver and Defendant CBC prays this Honorable Court to enter an Order dismissing Count II - Breach of Sales Agreement of the Plaintiff's Complaint with prejudice. OBJECTION NO. 5 DEMURRER - LEGAL INSUFFICIENCY - COUNT III - UNJUST ENRICHMENT/OUANTUM MERUIT 43. The averments of Paragraphs 1 through 42 of the within Preliminary Objections are incorporated as though the same were set forth herein fully in verbatim. 44. Plaintiff has failed to aver the elements necessary to sustain an action of unjust enrichment and quantum meruit. 45. Plaintiff has failed to aver that either Defendant Weaver or Defendant CBC incurred a benefit from the Theft of the Equipment. 46. In the absence of averments sufficient to prove that a either Defendant Weaver or Defendant CBC incurred a benefit from the Theft of the Equipment, Plaintiff's Count III - Unjust Enrichment/Quantum Meruit is legally insufficient and fails to set forth a cause of action upon which relief can be granted under any theory of law. 47. Pursuant to Pa. R.C.P. Rule 1028(a)(4), Count III - Unjust Enrichment/ Quantum Meruit of the Complaint should be dismissed. Pa. R.C.P. Rule 1028(a)(4). K:\WEAVER\Groff Equipment Coss\POs to Complaint 101706.wpd 7 WHEREFORE, Defendant Weaver and Defendant CBC prays this Honorable Court to enter an Order dismissing Count III - Unjust Enrichment/Quantum Meruit of the Plaintiff's Complaint with prejudice. Respectfully submitted, SEBRING & ASSOCIATES B. Sebring, Esq. &, v for Defendant Weaver Master Inc. and Defendant Commercial Building Corporation K:\WEAVER\Groff Equipment Loss\POs to Complaint 101706.wpd 8 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GROFF TRACTOR & EQUIPMENT, INC. CIVIL ACTION - LAW Case No. 06-4365 Plaintiff, V. SCHEDULING ORDER OF COURT WEAVER MASTER BUILDERS, INC., and COMMERCIAL BUILDING CORPORATION, Defendants ORDER OF COURT AND NOW, this _ day of 2006, upon consideration of Defendant Weaver Master Builders, Inc. and Defendant Commercial Building Corporation's Preliminary Objections, it is hereby ORDERED AND DECREED that a hearing on said Preliminary Objections shall be held before the undersigned on the _ day of 12006, at a.m./p.m. in Courtroom The Plaintiff's Brief shall be due on Reply Brief, if any, BY THE COURT: J. K:\WEAVER\GroffEquipment Loss\SehedulingOrderoECaurt 101806.wpd CERTIFICATE OF SERVICE I, the undersigned, do hereby verify that the within Preliminary Objections to Plaintiff's Complaint and Petition for Change of Venue was served upon the following counsel of record by DHL Overnight Courier, on this - ay of October, 2006: Susan V. Metcalfe, Esquire MCNEES WALLACE & NURICK LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Respectively Submitted, & ASSOCIATES da B. Sebri!6g, B? rney for Defendant Weaver r Builders, And Commercial Building ration C ? ? mac'! _ LO PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. -- ------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) GROFF TRACTOR & EQUIPMENT, INC. (Plaintiff) VS. WEAVER MASTER BUILDERS, INC. and COMMERCIAL BUILDING CORPORATION, (Defendant) No. 4365 , 2006 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections 2. Identify counsel who will argue cases: (a) for plaintiff: Susan V Metcalfe, Esquire MCNEES WALLACF & NITRTCK LTC (Name and Address) 100 Pine Street, P.O. Box 1166, Harrisburg, PA 17108-1166 (b) for defendant: Brenda B. Sebring, Esquire, SEBRING & ASSOCIATES (Name and Address) 2735 Mosside Boulevard, Monroeville, PA 15146 _ 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Weaver Master Builders, Inc., and Commercial Building Corporation, Defendants Date: October 19, 2006 Attorney for C3 ??rti C? ?-? c? -v ?.> ? c? fix. ? =°= ` ?` ?? ? ?t. ? 1 `t-;, ,,,,.,. .,..a ? ?? ? 2006 IN THE COURT OF COMMON PLEAS OF CUM MU A14D COUNTY, PENNSYLVANIA GROFF TRACTOR & EQUIPMENT, INC. Plaintiff, V. WEAVER MASTER BUILDERS, INC., CIVIL ACTION - LAW Case No. 06-4365 PRELMMARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND PETITION FOR CHANGE OF VENUE and COMMERCIAL BUILDING CORPORATION, Defendants. I, William J. Weaver, President of Weaver Master Builders, Inc., a Pennsylvania corporation, and President of Commercial Building Corporation, a Pennsylvania corporation, do hereby verify that the statements of fact averred in the within PRELEMKIARY OBJECTIONS are true and correct to the best of my information, knowledge and belief. I further recognize that said verification of the statements of fact contained herein are subject to penalty of 18 Pa.C.S.A. §4904 relating to unworn falsification to authorities. WEAVER MASTER BUILDERS, INC., a Pennsylvania oration By. W' iam J. Weaver President COMMERCIAL BUILDING CORPORATION, a Pennsyluania ration ZU 111o?A.A, By: W' iam J. Weaver President C) in ra ,^ McNEES WALLACE & NURICK LLC Susan V. Metcalfe, Esquire PA I.D. No. PA 85703 Megan N. Dreisbach, Esquire PA I. D. No. PA 201418 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: (717) 232-8000 Fax: (717) 237-5300 smetcalfeemwn.com Attorneys for Plaintiff GROFF TRACTOR & EQUIPMENT, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 06-4365 : CIVIL ACTION - LAW WEAVER MASTER BUILDERS, INC., and COMMERCIAL BUILDING CORPORATION, Defendants ANSWER OF PLAINTIFF GROFF TRACTOR & EQUIPMENT, INC. TO DEFENDANTS' PRELIMINARY OBJECTIONS AND PETITION FOR CHANGE OF VENUE Plaintiff Groff Tractor & Equipment, Inc. ("Groff'), by and through its counsel McNees Wallace & Nurick LLC, for its answer to Defendants' Preliminary Objections and Petition for Change of Venue states as follows: 1. Denied as stated. Groff asserted a claim against Defendant Weaver Master Builders ("Weaver") for breach of a Rental Agreement. Groff asserted a claim in the alternative against Defendant Commercial Building Corporation ("CBC") for breach of a Sales Agreement. Groff incorporates herein by reference the allegations of its Complaint. 2. Admitted. 3. Denied as stated. Groff averred in its Complaint that Weaver is liable for damages due and owing under the Rental Agreement for Equipment that Weaver reported stolen in November, 2005. Groff is without knowledge or information sufficient to form a belief as to whether the Equipment was stolen by an unknown third party. 4. Admitted. 5. Denied as stated. Groff averred in its Complaint that, in the alternative to its claim against Weaver for breach of the Rental Agreement, CBC is liable for damages due and owing under the Sales Agreement due to the loss of the Equipment. 6. Denied. According to the Pennsylvania Department of State Corporations Bureau, Weaver does not have a registered office address. It is admitted upon information and belief that Weaver maintains an office at 107 Ramblewood Lane, Mars, Pennsylvania 16046. 7. Denied. According to the Pennsylvania Department of State Corporations Bureau, CBC does not have a registered office address. It is admitted upon information and belief that CBC maintains an office at 107 Ramblewood Lane, Mars, Pennsylvania 16046. 8. Admitted. By way of further answer, Groffs principal place of business is located at 6779 Carlisle Pike, Mechanicsburg, Pennsylvania 17055, and all payments to Groff by customers are due and owing at that address. 2 ANSWER TO OBJECTION NO. 1 9. Paragraphs 1 through 8, above, together with the allegations of Grof's Complaint, are incorporated herein by reference. 10. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this allegation and it is therefore denied. 11. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this allegation and it is therefore denied. 12. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this allegation and it is therefore denied. 13. Denied. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this allegation and it is therefore denied. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted. 19. Denied. Paragraph 19 is a conclusion of law to which no response is required. By way of further answer, the Rental Agreement contains a clause that lays venue in this Court for any dispute arising out of or related to the Rental Agreement. Moreover, any payments to Groff under the Rental Agreement and Sales Agreement were payable to Groff 's principal offices located at 6779 Carlisle Pike, Mechanicsburg, Pennsylvania 17055. 3 20. Denied. Paragraph 20 is a conclusion of law to which no response is required. By way of further answer, the Rental Agreement contains a clause that lays venue in this Court for any dispute arising out of or related to the Rental Agreement. 21. Admitted in part and denied in part. It is admitted upon information and belief that the Equipment was located in Butler County at the time of the theft. It is denied that the Equipment was not located in Cumberland County at any time. By way of further answer, the Rental Agreement contains a clause that lays venue in this Court for any dispute arising out of or related to the Rental Agreement. 22. Denied. Venue is proper in this Court because the Rental Agreement contains a choice of venue clause in which Defendant Weaver Master Builders, Inc. expressly agreed that the Court of Common Pleas of Cumberland County has jurisdiction and venue over any dispute arising out of the Rental Agreement. 23. Denied. Paragraph 23 states a conclusion of law to which no response is required. To the extent a response is deemed required, it is denied. WHEREFORE, Plaintiff Groff Tractor & Equipment, Inc. respectfully requests that the Court overrule Defendants' Preliminary Objections. ANSWER TO OBJECTION NO. 2 24. Paragraphs 1 through 23, above, together with the allegations of Groffs Complaint, are incorporated herein by reference. 25. Admitted. 26. Denied. Groff attached a complete copy of the Rental Agreement to its Complaint as Exhibit "A." 4 27. Denied as stated. Groff did not attach a copy of any "termination of the Rental Agreement" because no such termination exists, and because Groffs claim is not based on such a document. If Weaver intends to assert a defense that is based on such a document, it is Weaver's obligation to attach it to its pleading. 28. Denied. Plaintiff complied with Pa.R.C.P. 1019(1) by attaching a full and complete copy of the Rental Agreement to its Complaint. WHEREFORE, Plaintiff Groff Tractor & Equipment, Inc. respectfully requests that the Court overrule Defendants' Preliminary Objections. ANSWER TO OBJECTION NO. 3 29. Paragraphs 1 through 28, above, together with the allegations of Groffs Complaint, are incorporated herein by reference. 30. Denied. Groff averred all of the elements necessary to sustain a breach of contract action against Weaver. 31. Denied. Groff specifically averred at Paragraph 44 of its Complaint that the Rental Agreement was in effect at the time of the theft. 32. Denied. Groff averred that the Rental Agreement was in effect, and had no obligation to plead that the Rental Agreement "was not terminated prior to the theft." By way of further answer, Groff suspended billing on rental invoices pending Defendant Commercial Building Corporation's credit application and purchase of the Equipment; however, the Rental Agreement was not terminated, and it remained in effect. 33-34. Denied. Groff has sufficiently pled the existence of a contract and all of the elements of a breach of contract claim. 5 WHEREFORE, Plaintiff Groff Tractor & Equipment, Inc. respectfully requests that the Court overrule Defendants' Preliminary Objections. ANSWER TO OBJECTION NO.4 35. Paragraphs 1 through 34, above, together with the allegations of Groffs Complaint, are incorporated herein by reference. 36. Denied. Groff has averred all of the elements necessary to sustain a breach of contract action against CBC. 37-38. Denied as stated. Groff has averred in the alternative to Count I of its Complaint that, if it is determined that the Rental Agreement was not in effect at the time of the theft, then the Sales Agreement between Groff and CBC was in effect at the time of the theft. 39. Denied. The document attached as Exhibit "C" to Groffs Complaint is a document that speaks for itself and Defendants' characterization thereof is therefore denied. 40. Denied. Paragraph 40 states a legal conclusion to which no response is required. To the extent a response is deemed required, it is denied. 41-42. Denied. Groff has sufficiently pled facts supporting a claim for breach of contract against Defendant Commercial Building Corporation. WHEREFORE, Plaintiff Groff Tractor & Equipment, Inc. respectfully requests that the Court overrule Defendants' Preliminary Objections. 6 ANSWER TO OBJECTION NO. 5 43. Paragraphs 1 through 42, above, together with the allegations of Groffs Complaint, are incorporated herein by reference. 44. Denied. Groff has averred all of the elements necessary to support an action of unjust enrichment and quantum meruit against Defendants. 45. Denied. Groff has averred that Weaver and CBC incurred a benefit from possessing and using the Equipment until the time it was allegedly stolen, while under the possession and control of Weaver and CBC. 46-47. Denied. Groff has averred facts sufficient to support a claim against Weaver and CBC for unjust enrichment/quantum meruit. WHEREFORE, Plaintiff Groff Tractor & Equipment, Inc. respectfully requests that the Court overrule Defendants' Preliminary Objections. McNEES WALLACE & NURICK LLC By -?W S an V. tca fe, Esquire PA I.D. No. 85703 Megan N. Dreisbach, Esquire PA I . D. No. 201418 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108 (717) 232-8000 Dated: November _, 2006 Attorneys for Plaintiff 7 VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4504 relating to unsworn falsification to authorities, I hereby certify that I am President and CEO of Groff Tractor & Equipment, Inc., and am authorized to execute this Verification on its behalf, and that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. Michael Sa stio Dated: November , 2006 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon the following individual, via first-class mail, postage prepaid: Brenda B. Sebring, Esquire Sebring & Associates 2735 Mosside Boulevard Building C, Fourth Floor Monroeville, PA 15146-2736 Meg F911 . Dreis ch, squire Dated: November 7 2006 1 Co q i "? SHERIFF'S RETURN - OUT OF COUNTY 6 CASE NO: 2006-04365 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GROFF TRACTOR AND EQUIPMENT VS WEAVER MASTER BUILDERS INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT WEAVER MASTER BUILDERS INC but was unable to locate Them deputized the sheriff of BUTLER , to wit: in his bailiwick. He therefore serve the within WRIT OF SUMMONS County, Pennsylvania, to On August 29th , 2006 , this office was in receipt of the attached return from BUTLER Sheriff's Costs: So answer Docketing 18.00 --" Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Butler County 39.46 Sheriff of Cumberl nd County Postage 1.02 77.48 (4-,- 08/29/2006 MCNEES WALLACE NURICK Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-04365 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GROFF TRACTOR AND EQUIPMENT VS WEAVER MASTER BUILDERS INC R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT COMMERCIAL BUILDING but was unable to locate Them CORPORATION to wit: in his bailiwick. He therefore deputized the sheriff of BUTLER serve the within WRIT OF SUMMONS County, Pennsylvania, to On September 28th , 2006 , this office was in receipt of the attached return from BUTLER Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Butler County 42.00 Postage 1.50 So answers i R: Thomas Kline Sheriff of Cumberland County 80.50 v/- 09/27/2006 MCNEES WALLACE NURICK Sworn and subscribe to before me this day of A. D. In The Court of Common Pleas of Cumberland County, Pennsylvania ' Groff Tractor and Equipment Inc vs. Weaver Master Builders Inc No. 06-4365 civil Now, August 9, 2006 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Butler County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a 20 , at o'clock M. served the and made known to copy of the original So answers, Sheriff of Sworn and subscribed before me this day of , 20 COSTS SERVICE _ MILEAGE _ AFFIDAVIT the contents thereof. County, PA County of JOutter, Venwplbania Court Docket #: 2006-4365 CMB County of Butler County, Commonwealth of Pennsylvania GROFF TRACTOR AND EQUIPMENT, INC VS. WEAVER MASTER BUILDERS, INC Sheriff File Number - 06001898 Affidavit of Service WRIT OF SUMMONS tit RIf t*441 C6Yf?+ I hereby CERTIFY and RETURN that on 8/16/2006 at 2:50PM at 107 RAMBLEWOOD LANE MARS, PA 16046 the within WRIT OF SUMMONS, was served on WEAVER MASTER BUILDERS, INC, the defendant named herein, in the following manner: ALTERNATE PERSON By delivering to and leaving with MR WEAVER the OWNER to the defendant a true copy thereof, a person over the age of eighteen. Said address was the BUSINESS of the defendant. Fees Received from Attorney: MILEAGE ($12.46), NOTARY ($4.00), SERVICE ($9.00), WRIT ($9.00), COPIES ($5.00) Total Charges $39.46 Attorney Name: CUMBERLAND COUNTY SHERIFF, ONE COURTHOUS AR ,CARLISLE, PA 17013 Affirmed & Subscribed to before Me August3O, 2006 RICH S , Dep S rlf Notary Public PRorHONoTARY OFFICIiL TITLE My commission expires: l FaPM pal MOWAV O AMI BYOB Sheriff, Butler County, Pennsylvania • ='ta 1{;? ?:tc, inti?. • 1' 4 T>nt6er .I't)5 !k(. 11? RNATE.dotSherfff's Office Courthouse • P.O. Box 1208 • Butler, PA 16003-1208 Office of County Sheriff Dennis C. Rickard, Sheriff Douglas R. Hays, Chief Deputy Thomas W. King, 111, Solicitor Fax: (724) 284- 5248 9 Telephone (724) 284-5245 • TDD (724) 284-5473 In The Court of Common`Plea's of Cumberland County, Pennsylvania Groff Tractor & Equipment Inc VS. Weaver Master Builders Inc SERVi: Carmercial Building Corporation No. 06-4365 civil Now, September 6, 2006 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Butler County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a and made known to copy of the original So answers, the contents thereof. Sheriff of Sworn and subscribed before me this day of , 20 COSTS SERVICE _ MILEAGE _ AFFIDAVIT County, PA 20 , at o'clock M. served the Cuuntp of JOutter, Vennoplbanta Office of County Sheriff J Dennis C. Rickard, Sheriff Douglas R. Hays, Chief Deputy Thomas W. King, 111, Solicitor Court Docket #: 2006-4365 CMB County of Butler County, Commonwealth of Pennsylvania GROFF TRACTOR & EQUIPMENT, INC VS. WEAVER MASTER BUILDERS, INC, COMMERCIAL BUILDING CORPORATION Sheriff File Number - 06002176 Affidavit of Service %JAEAJIF ???stR caoa?r COMPLAINT IN CIVIL ACTION - NOTICE TO DEFEND, COUNTS & VERIFICATION I hereby CERTIFY and RETURN that on 9/12/2006 at 10:38AM at 107 RAMBLEWOOD LANE MARS, PA 16046 fn e within COMPLAINT IN CIVIL ACTION - NOTICE TO DEFEND, COUNTS & VERIFICATION, was served COMMERCIAL BUILDING CORPORATION, the defendant named therein, in the following manner: ALTERNATE PERSON By delivering to and leaving with WILLIAM J WEAVER the PRESIDENT to the defendant a true copy thereof, a person over the age of eighteen. Said address was the BUSINESS of the defendant. Fees Received from Attomey: MILEAGE ($15.00), NOTARY ($4.00), SERVICE ($9.00), WRIT ($9.00), COPIES ($5.00) Total Charges $42.00 Attorney Name: CUMBERLAND COUNTY SHERIFF, ONE COURTHO SQU C I 17013 Affirmed & Subscribed to before Me September I? 2006 RICHARD S JAKSEC, D ut heriff 4e?' A - al Notary Public PRo I-HONOTARY OFFICIAL TITLE My commission expires: COM MS810N 0VW pM1 MOWAY W jM ? Sheri , Butler County, Pennsylvania • ?)cSziftC«eie, inc.. t'A._Btitter 9'(IS. Al 'J`1•:3 X' k t 1;.t1ai'SheriWs Office Courthouse • P.O. Box 1208 • Butler, PA 16003-1208 Fax: (724) 284- 5248 • Telephone (724) 284-5245 9 TDD (724) 284-5473 1 GROFF TRACTOR & EQUIPMENT, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. WEAVER MASTER BUILDERS, INC., and COMMERCIAL BUILDING CORPORATION, Defendants NO. 06-4365 CIVIL IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE BAYLEY, P.J., AND HESS, J. ORDER AND NOW, this Z"` day of February, 2007, following argument thereon, the preliminary objections of the defendants are DENIED. BY THE COURT, Kevin 47 Hess, J. Susan V. Metcalfe, Esquire For the Plaintiff Brenda B. Sebring, Esquire For the Defendants rlm _. f l ?? ?? ? ? ? ' ?? n .`fit e ?:' GROFF TRACTOR & IN THE COURT OF COMMON PLEAS OF EQUIPMENT, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. NO. 06-4365 CIVIL WEAVER MASTER BUILDERS, INC., and COMMERCIAL BUILDING CORPORATION, Defendants IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE BAYLEY, P.J., AND HESS, J. OPINION AND ORDER Plaintiff, Groff Tractor and Equipment, Inc. ("Groff"), is a construction equipment dealer that sells and rents construction machinery. Groff is headquartered in Cumberland County, Pennsylvania. Defendants, Weaver Master Builders, Inc. ("WMB") and Commercial Building Corporation ("CBC"), are located at the same address in Butler County, and William J. Weaver is the president of both entities. Groff, in its complaint, alleges that on October 11, 2005, WMB entered into a rental agreement with Groff to rent an excavator for use at WMB's and CBC's construction jobsite. In early November 2005, Weaver inquired into buying the excavator from Groff in the name of CBC, instead of having WMB continue to rent it. A sales agreement was drafted and a sales order was executed, but the sale was contingent upon CBC receiving credit approval and Groffs acceptance of the sales order. In the meantime, on November 12, 2005, WMB notified Groff that the rented excavator had been stolen from the jobsite during the previous night. WMB paid Groff for the first month's rental payment, but thereafter ceased making payments. NO. 06-4365 CIVIL Groff brought suit against WMB in Cumberland County for breach of the rental agreement. Groff asserts that the rental agreement was in effect when the excavator was stolen, and that the full value of the excavator is due to them from WMB. WMB asserts that the rental agreement was terminated before the excavator was stolen. In the alternative, Groff claims that if it is determined that the rental agreement was no longer in effect, CBC is liable for breach of the sales agreement. Defendants have filed several preliminary objections. In defendants' first preliminary objection, it asserts that Cumberland County is not the proper venue for either defendant. However, the rental agreement between Groff and WMB includes the following forum selection clause: 19. Jurisdiction and Venue. Any action based on any dispute arising out of or related to this Agreement shall be brought in the Court of Common Pleas of Cumberland County, Pennsylvania, or the United States District Court for the Middle District of Pennsylvania. Customer irrevocably consents to venue and exclusive jurisdiction in such courts. The Pennsylvania Supreme Court has held that forum selection clauses are presumed to be valid and enforceable "when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation." Central Contracting Co. v. C.E. Youngdahl & Co., 209 A.2d 810, 816 (Pa. 1965). The Pennsylvania Superior Court has recently found that forum selection clauses in commercial contracts will be deemed unenforceable only when: (1) the clause itself was induced by fraud or overreaching; (2) the forum selected in the clause is so unfair or inconvenient that a party, for all practical purposes, will be deprived of an opportunity to be heard; or (3) the clause is found to violate public policy. Patriot Commercial Leasing Co., Inc. v. Kremer Restaurant Enterprises, LLC 2006 WL 3742765, at *3 (Pa.Super. 2006). In this case, the preliminary objections do not allege 2 NO. 06-4365 CIVIL that the forum selection clause is unenforceable, let alone for any of the reasons stated in Patriot Commercial Leasing Co., Inc., Id. Also, even if WMB's assertion that the rental agreement had been terminated prior to the theft is true, this action is "related to this [rental] Agreement," and the forum selection clause governs. Therefore, venue is proper for WMB. Venue is also proper in regard for the claim against CBC. According to Pa.R.C.P. 1006(f)(1), "if the plaintiff states more than one cause of action against the same defendant in the complaint pursuant to Rule 1020(a), the action may be brought in any county in which any one of the individual causes of action might have been brought." While the defendants may not literally be "the same," there is a sufficient identity of the defendants to invoke this rule. Weaver is the President of both WMB and CBC, they are located at the same address and basically function together. In its second preliminary objection, defendants assert that Groff failed to conform to a rule of court, specifically Pa.R.C.P. 1019(1), which requires that when a claim is based on a writing, the pleader must attach a copy of the writing. The plaintiff's claim is based on the rental agreement. The rental agreement was attached to the complaint. Therefore, the preliminary objection should be denied. In its third and fourth preliminary objections, defendants assert that Groff s claim against WMB for the breach of the rental agreement and Groff's claim against CBC for breach of the sales agreement were legally insufficient pursuant to Pa.R.C.P. 1028(a)(4), and a demurrer should be granted. A claim for breach of contract is sufficiently pled if Groff's complaint alleges: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; (3) and, resultant damages. J.F. Walker Co., Inc. v. Excalibur Oil NO. 06-4365 CIVIL Group, Inc., 792 A.2d 1269, 1273 (Pa. Super. 2002). Because Groff s complaint sufficiently alleges these in the counts for breach of contract against WMB and CBC, the third and fourth preliminary objections will be denied. In its fifth preliminary objection, defendants assert that Groff s claim for Unjust Enrichment/Quantum Meruit against both WMB and CBC is legally insufficient pursuant to Pa.R.C.P. 1028(a)(4), and a demurrer should be granted as to Count III. The claim for unjust enrichment is sufficiently pled if Groff s complaint alleges: (1) a benefit was conferred on the defendant by the plaintiff; (2) appreciation of the benefit by the defendant; (3) and acceptance and retention by the defendant of such benefit under circumstances such that it would be inequitable for him to retain the benefit without payment of the value thereof. Wolf v. Wolf, 514 A.2d 901, 905-06 (Pa.Super. 1986). In this case, the excavator was stolen and it is arguable that WMB and CBC have not retained any benefit. The claim of unjust enrichment, however, according to plaintiff s argument, has been brought as an alternative in what it considers the unlikely event that the written contracts are found to be invalid or unenforceable. We see no harm in this form of alternative pleading. ORDER AND NOW, this 1-"day of February, 2007, following argument thereon, the preliminary objections of the defendants are DENIED. 4 BY THE COURT, NO. 06-4365 CIVIL Susan V. Metcalfe, Esquire For the Plaintiff Brenda B. Sebring, Esquire For the Defendants Am McNEES WALLACE & NURICK LLC Susan V. Metcalfe, Esquire Attorney I.D. No. PA 85703 Megan N. Dreisbach, Esquire I.D. No. 201418 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: (717) 232-8000 Fax: (717) 237-5300 smetcalfe(c-mwn.com Attorneys for Plaintiff GROFF TRACTOR AND EQUIPMENT, : IN THE COURT OF COMMON PLEAS INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 06-4365 Civil Term V. CIVIL ACTION - LAW WEAVER MASTER BUILDERS, INC., and COMMERCIAL BUILDING CORPORATION, Defendants PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: Please mark the above-captioned action settled, discontinued, and ended with prejudice against Defendants Weaver Master Builders, Inc. and Commercial Building Corporation. McNEES WALLACE & NURICK LLC By V san V. Metcalfe, E quire I.D. No. 85703 Megan N. Dreisbach, Esquire I.D. No. 201418 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff Dated: June ?, 2007 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon the following individual, via first-class mail, postage prepaid: Brenda B. Sebring, Esquire Sebring & Associates 2735 Mosside Boulevard Building C, Fourth Floor Monroeville, PA 15146-2736 Susan V. Metcalfe, Esquire Dated: June 4, 2007 C'' C? ' C:::D v, ?